Bail refers to the temporary release of an arrested person in exchange for security.
Sec 2(a) of the code of civil procedure defines bailable and non-bailable offences as follows: ‘ Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence".
The concept of bail is majorly dependent upon the gravity of the offence alleged.
- Bailable offence – Minor offences constitute bailable offences. On being arrested for such an offence one has a right to bail and can get it by following the procedure set up by law. For example- Defamation.
- Non bailable offence – These offences are more serious in nature. For example, murder, sedition, rape etc. In this case, there is no right to bail.
It is relatively easier to procure bail for a bailable offence.
Bail in case of bailable offence-
Bail in case of a bailable offence is governed by section 436 and section 439 of CRPC. A bail in the case of bailable offence can be granted either by the police officer or the court before which he/she is produced. The accused is entitled to bail as a matter of right.
A bail can be granted if the nature of the offence is not that serious and if the sentence for the same is not death penalty or life imprisonment. Other factors for bail grant that can be taken into account are prior criminal records of the accused, his behaviour in prison, age etc.
As per Section 50 of CrPC Whenever a person is arrested without warrant, it is the duty of the police officer to communicate the full detail of the offence for which the person is arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety.
In Rasiklal vs Kishore Khanchand Wadhwani [AIR 2009 1341], “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”
For getting a bail one has to sign the bail bond along with the payment of a certain amount and two sureties. Surety is someone who promises to ensure the presence of the accused whenever instructed. Bail Bond is a written promise which is signed by the accused or the person who gives guarantee that the presence of accused whenever instructed. Along with the bond, a certain amount, fixed by the police officer or court, has to be paid. This amount is given back once the case ends after deducting some administrative expenses.
Bail in case of non bailable offence
The governing section for bail in non-bailable offences is section 473 of CrPC. Usually, it is not easy to get bail in case of non- bailable offences. But in exceptional cases court may grant bail if the accused-
- is arrested without warrant by an officer in charge
- is a child that is less than 16 years old.
- is a woman
- is sick or infirm
However, if the person is accused of an offence whose punishment is death penalty or life imprisonment, he/she will not be granted bail in any case. Similarly, if a person has earlier been convicted for a period more than 7 years, he/ she shall not be granted bail.
Anticipatory bail
Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Indian Constitution. Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973. Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. However, few conditions have to be complied with to obtain such bail-
- Be available for interrogation and trials as and when required.
- No inducement or threat or promise to be made directly or indirectly to a person acquainted with a case with a dishonest intention.
- The person should not leave India without the court's prior permission.
In Gurbaksh Singh Sibbia v. State of Punjab [AIR 1980 SC 1632] , the Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.